There are many benefits to resolving medical malpractice lawsuits through mediation. However, barriers put up by doctors, hospitals, and their lawyers will often stand in the way of effective mediation.
Mediation has been found to reduce the costs of litigation. It also increases the likelihood of closure for plaintiffs and ensures that procedures in hospitals are changed to prevent a recurrence of the error at issue in the lawsuit.
Mediation is where an impartial third party helps both parties in a dispute to negotiate and hopefully reach a mutually acceptable resolution. Either party can refuse to settle and return to litigation. However, mediation sessions are confidential and anything discussed is inadmissible if the case goes to court.
There are several reason to attempt mediation in medical malpractice cases, including:
- The outcome is under the control of the parties,
- Plaintiffs may receive payment sooner than through litigation,
- Defendants do not need to pay outside lawyers to try the case,
- Medical staff does not have to prepare for discovery and a trial, and
- Medication may create enough momentum to lead to settling the case.
Unfortunately, mediation rarely occurs. There are many challenges remaining for mediation to gain more acceptance. Medical leaders, hospital administrators, and malpractice insurers are suspicious of the tort system, preventing them from approaching medical errors and adverse events as opportunities to learn. As a result, lawyers who embrace mediation and the opportunity it provides to solve problems, show compassion, and improve care, are rarely retained.
Additionally, doctors rarely take part in mediation. This is a missed opportunity as plaintiffs may be even more satisfied with the mediation process if their physician demonstrated respect and caring simply by attending. The mediation could be an opportunity for patients to heal, understand, forgive, and repair the broken relationships.
In most cases, it has been found that patients want an apology from their doctor for the medical error, and that many doctors want to give the apology. However, due to fear of legal liability, the doctor and their lawyers refrain from giving the apology.
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